Idaho could be headed for another N-wastes battle

BOISE -- A decade after cutting an unprecedented deal forcing the federal government to ship tons of highly radioactive refuse out-of- state for disposal, Idaho may be entering a new round of nuclear waste wars with the U.S. Department of Energy.

State officials say they are concerned the Energy Department has been making conflicting statements whether it will transport waste produced by a proposed plutonium-238 production plant at the Idaho National Laboratory complex to New Mexico for permanent burial in an underground repository.

The scientist who oversees the department's Waste Isolation Pilot Plant in New Mexico initially told the Associated Press that the plant wouldn't take the Idaho material because it would be a a byproduct of civilian projects for NASA and national security agencies, and therefore wouldn't qualify as waste from "atomic energy defense activities."

Only defense program waste is eligible for burial in the deep geologic salt beds near Carlsbad that Congress set aside in 1979.

But after conferring with department officials in Idaho, who have maintained in public hearings around the state this month that the 20 cubic meters of "transuranic" waste created each year -- plutonium-contaminated gloves, tools, rags and other rubbish that would fill 96 55-gallon drums -- will go to New Mexico for burial, the dump's chief scientist Roger Nelson said the Idaho waste would indeed be eligible for burial at the out-of-state defense waste dump.

"Because the proposal calls for the use of plutonium-238 in national security applications, we believe any potential transuranic waste would be eligible for disposal at WIPP," he said.

A 1996 opinion by the department's then-general counsel Robert Nordhaus outlines which defense nuclear projects are eligible to deposit waste at the New Mexico dump.

"A strict interpretation of the Nordhaus memo does not allow NASA applications to qualify," Nelson said in an earlier interview. Later, he and other department officials declined to specify how they subsequently concluded plutonium projects for NASA and national security agencies would actually be considered defense activities under the 1996 guidelines.

"It would be premature to comment on any specifics because no decision has been made on the project at this point," said Tim Jackson, a spokesman for the Energy Department.

Kathleen Trever, nuclear waste policy adviser to Gov. Dirk Kempthorne, R-Idaho, said the state is refraining from endorsing the $300 million plutonium project.

"An important lesson we've learned is to make sure the disposal site says we can accept the waste," Trever said. "We won't be in full support of the project until it's demonstrated that a clear disposal path has been arranged for all the waste."

Idaho has a high-profile history of squaring off against the federal government over nuclear waste storage at the 890-square- mile complex, which sits above the Snake River Plain aquifer. The aquifer is one of the largest in the world, containing about as much water as Lake Erie, and is the major source of irrigation and drinking water for more than 10,000 square miles of the southeastern corner of the state.

In 1988, Democratic Gov. Cecil Andrus unilaterally forbade additional shipments of radioactive waste left over from nuclear weapons production in Colorado from entering Idaho. In 1995, Republican Gov. Phil Batt forced the Energy Department to agree to remove all radioactive waste from the site by 2036 under a series of strict timelines and to limit the amount of new waste brought into the state.

While the Batt agreement has forced the department to ship tons of defense-related plutonium waste out of Idaho to the New Mexico repository, the federal government is struggling to meet the deal's quota requirement of 6,000 cubic meters removed from 2002 through 2005. At the end of last month, the department had only exported 1,235 cubic meters over the first two and a half years of the three- year period and appears unlikely to ship all of the remaining 4,765 cubic meters by Dec. 31.

The Bush administration wants to consolidate in Idaho all the production of plutonium-powered "space batteries" that will be used for NASA space missions and unspecified national security applications. The batteries won't be used in any weapons, military satellites or missile defense systems, according to a draft environmental impact statement released last month. The current stockpile of plutonium-238 is running low, and the Energy Department wants to begin producing 11 pounds of the highly radioactive material per year for 35 years beginning in 2011.

The department's position that plutonium waste from the Idaho project would qualify for burial at the New Mexico dump could trigger a legal battle or a renegotiation of the terms of the federal land withdrawal deal between the agency and the state of New Mexico, said Anne deLain Clark, coordinator of New Mexico's task force on radioactive waste.

"This does not sound like defense waste and from New Mexico's point of view, anything not already established in the current inventory increases amount of waste that comes into the state so we would definitely have concerns," Clark said.

Because plutonium-238 is made from another fissile material, neptunium-237, department officials may argue that the "pedigree" of the Idaho plutonium is rooted in a defense application because that material was originally created for defense use at DOE's Savannah River complex in South Carolina.

But Nelson, chief scientist at the New Mexico repository, said the 1996 Nordhaus memo doesn't address such situations.

"If the material was born with a defense pedigree, then no matter what you do to it in the future is it still defense-related?" said Nelson. "We haven't been asked yet and if we are, that's going to take a lot of legal scrutiny to determine."

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